Otis v. City of Chicago

Decision Date18 July 1994
Docket NumberNo. 92-1342,92-1342
Citation29 F.3d 1159
Parties65 Fair Empl.Prac.Cas. (BNA) 705, 65 Fair Empl.Prac.Cas. (BNA) 992, 65 Empl. Prac. Dec. P 43,268, 63 USLW 2067, 29 Fed.R.Serv.3d 606 Arlene OTIS, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Ramsay Laing Klaff, Ramsay Laing Klaff (argued), Chicago, IL, for plaintiff-appellant.

Amy E. Neuman, Frank B. Garrett, III, Robbins, Schwartz, Nicholas, Lifton & Taylor, Kelly R. Welsh, Julian Henriques (argued), Eileen Brewer, Benna R. Solomon, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendant-appellee.


EASTERBROOK, Circuit Judge.

We set this case for hearing en banc to decide whether an order dismissing the suit, but allowing the litigant an option of reinstatement, becomes a "final decision," and therefore may be appealed under 28 U.S.C. Sec. 1291, once the time to use the option has expired. Our answer is "yes."


On August 1, 1989, the Commission on Chicago Landmarks laid off Arlene Otis. She filed this suit under Title VII of the Civil Rights Act of 1964, contending that the City acted because she is black rather than for its stated reason, lack of funds. The district court appointed counsel for Otis under 42 U.S.C. Sec. 2000e-5(f)(1). Shortly before, Otis had failed to appear for a status conference and a scheduled deposition, setting a pattern that was to continue. Soon after the court provided her with a lawyer, Otis stood up counsel for both sides by not appearing for a rescheduled deposition, and she did not keep appointments with her lawyer.

The district judge instructed Otis to cooperate with her lawyer and informed her that "[f]ailure to cooperate with counsel will result in dismissal" of the case. Shortly after receiving this warning, Otis skipped an appointment with her lawyer and appeared an hour late for her deposition. The deposition could not be completed and was rescheduled. On December 11, 1990, the date to which the deposition had been continued, Otis did not attend. Her lawyer asked the court for leave to withdraw; the City asked the court to dismiss the case as a sanction. Otis apologized for her conduct and promised to cooperate in the future, thrice vowing: "I won't miss any more dates." The judge denied both motions, instructing Otis to be at her lawyer's office at 9:00 A.M. on January 8, 1991, and to complete her deposition the next day. The judge explicitly warned: "[I]f you miss any of those dates, your case is over." Otis came at 10:30 A.M., by which time her lawyer was in another meeting, but did complete the deposition on January 9.

At a status hearing on February 6 plaintiff's counsel informed the court that the City had satisfied its discovery obligations but that Otis needed to complete her answers to the City's interrogatories. Two weeks later counsel renewed his motion to withdraw, telling the court that Otis had missed one more appointment and arrived so late for another that it had been impossible to meet with her. Counsel told the judge that Otis also had not supplied the information necessary for him to answer the City's interrogatories. This time the judge permitted the lawyer to withdraw and informed Otis that he would not appoint another:

I am sorry, Ms. Otis, but I can only go so far to ask the members of the bar to use their free time to help people like you, and you have only yourself to blame for the fact that I am granting this motion. I am sorry, but counsel is given leave to withdraw and you will have to represent yourself, unless you are able to hire an attorney.

Otis did not find another lawyer on her own, and she did not complete her discovery obligations.

At a status hearing on March 27, 1991, Otis told the judge that there had been a fire in her apartment and that she had become homeless. She did not appear for the next status hearing, but she apparently learned that the court had set a discovery cutoff date of May 8, 1991, for on that date she produced her answers to the City's first set of interrogatories. In response to all 15 questions after the first (which solicited her name and address), she wrote: "I cannot answer this question at this time due to extreme emotional distress." She ignored the single query in the City's second round of interrogatories, and she did not furnish any of the documents Chicago requested. The City asked the court to dismiss the case for failure to complete discovery, and the court granted this motion.

Otis told the judge at a hearing on July 11 that she was homeless, that she was being treated for depression and emotional distress, and that she had been unsuccessful in her quest for another lawyer and was unable to proceed on her own. The judge expressed sympathy but remained unwilling to conscript another lawyer for a person who had failed to cooperate with the first. Believing that the City was entitled to prevail on the current record, but seeking to offer Otis a chance to continue if she were to recover from her depression or locate a lawyer, the court gave each side part of what it wanted. The judge told Otis that he would grant the City's motion and dismiss the case but that he would reinstate the suit if, within six months, she answered the City's interrogatories. On July 15, 1991, the court entered this order:

Defendant's continued motion to dismiss case for failure of plaintiff to comply with court's order is granted. Order cause dismissed with leave to plaintiff to move on properly noticed motion for leave to reinstate case provided that plaintiff has delivered to defendant signed answers to outstanding discovery requests. Motion for leave to reinstate case must be noticed for hearing on or before January 11, 1992.

The preprinted form used for miscellaneous orders in the Northern District of Illinois has two check boxes, one marked "Judgment is entered as follows:" and the other "[Other docket entry:]". The clerk checked the latter box.

Otis did not file any papers between July 15, 1991, and January 11, 1992. When January 12 arrived, the district court took no action. It did not then enter a judgment under Fed.R.Civ.P. 58 and has not done so since. On February 10, 1992, Otis filed a notice of appeal.


Unfortunately, this case became dormant in the district court without the benefit of a final judgment under Rule 58. Two factors jointly produced this.

First, the district court dismissed the case with leave to reinstate. Dismissal with leave to reinstate is rare outside the Northern District of Illinois. Because the conditional ability to revive the case renders the dismissal a disposition without prejudice, neither side may appeal immediately. Rosser v. Chrysler Corp., 864 F.2d 1299, 1304-06 (7th Cir.1988). Jurisdictional problems often ensue. Adams v. Lever Bros. Co., 874 F.2d 393 (7th Cir.1989). If the case cannot be appealed now, when may it be appealed? Does either side need to obtain an additional order from the district judge, or does the dismissal convert to one "with prejudice" once the time to fulfil the condition has expired? If an additional order is required, what if the district judge neglects to enter it? Does this cast the case into limbo, from which the loser has no escape? If a conditional dismissal eventually becomes appealable, when? What of the possibility, discussed in Adams, that when the decision becomes "final" on expiration of the time to reinstate, the time to appeal has already expired, because it ran from entry of the order?

Pitfalls and imponderables of this kind--this catalog is not exclusive--make the use of conditional dismissals problematic. On rare occasions dismissal with leave to reinstate may serve a legitimate purpose, but most of the time both litigants and courts would be better off if the judge announced a plan to dismiss in the future unless something happened. Here, for example, the judge could have said that unless by January 11, 1992, Otis answered the defendant's interrogatories, he would dismiss the case with prejudice. Casting the order in this fashion would have induced the court to schedule a status conference for January 12, which would have led to the entry of a proper final judgment if Otis had not satisfied her obligations by then. One difference between a dismissal with leave to reinstate and a continuance with dismissal in store if a step is not taken is that the immediate dismissal makes the district court's statistics look better. Never should a court jeopardize a litigant's rights for the purpose of burnishing its own reputation. We trust that district judges will be careful to use this device only when it serves a legitimate function that cannot be achieved in other ways.

Second, after the time to reinstate the case had expired, the district court did not enter a judgment. Rule 58 provides that every case must end with a formal judgment on a separate document. For some years, the Northern District of Illinois has been less than punctilious in observing this requirement. Although minute orders pepper the record, cases often peter out without the clarity that a Rule 58 judgment produces. Rule 58 is designed to produce a distinct indication that the case is at an end, coupled with a precise statement of the terms on which it has ended. It should be a self-contained document, saying who has won and what relief has been awarded, but omitting the reasons for this disposition, which should appear in the court's opinion. E.g., Reytblatt v. Denton, 812 F.2d 1042 (7th Cir.1987); Foremost Sales Promotions, Inc. v. Director, BATF, 812 F.2d 1044 (7th Cir.1987). In this case the district court should have entered a judgment on January 12, 1992, stating something like: "The suit is dismissed with prejudice, and plaintiff shall take nothing by her...

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